When the British occupied New York City in 1776, they confiscated the estates of patriots who had fled and placed them under the management of the Barrack Master General. Likewise, many American states passed laws allowing the seizure of loyalists’ property; these co-called “confiscation laws” effectively criminalized war dissent. New York’s most aggressive confiscation (or forfeiture) law, titled “An Act for the Forfeiture and Sale of the Estates of Persons who have adhered to the Enemies of this State, and for declaring the Sovereignty of the People of this State, in respect to all Property within the same,” was passed on October 22, 1779 (New York Laws, 3rd session, Ch. 25). New Yorkers who were convicted of adhering to the British side (for instance, by voluntarily moving into areas occupied by the British or remaining behind enemy lines after obtaining a pass) forfeited their real and personal property and were banished from the state, which in turn was empowered to seize and sell the forfeited property.[1]

While this law could not be enforced while the British occupied the city, that didn’t stop litigation. On May 5, 1780 an Ulster County, New York jury indicted James Leonard under the Confiscation Act. Following Leonard’s failure to appear to contest the indictment, judgment was entered against him and his property was forfeited. The judgment roll was signed on November 9, 1782. In the meantime, on May 13, 1781 James Leonard had bought a house and lot in British occupied New York City. Following the British evacuation of New York City in November 1783, patriots returning to reclaim their property could invoke the Trespass Act, which the New York State legislature passed on March 17, 1783.[2]

This law gave patriots the right to sue anyone who had occupied, damaged, or destroyed property they had left behind British lines during the war, using the legal action of trespass. Without this act, patriots could use the common law action of trespass quare clausum fregit (“wherefore he broke the close”) against those who entered their land unlawfully (“broke the close”). According to the law of nations, the use of abandoned property during wartime was justifiable if authorized by a military commander and if it answered the common law claim. The Trespass Act, however, explicitly prohibited the use of military orders and authorizations as a defense. On May 15, 1784 the New York State Commissioners of Forfeiture seized Leonard’s property which he had purchased in May 1781 and sold it to a carpenter named Anthony Post.[3]

In July 1784, Leonard filed suit to recover his property, hiring Alexander Hamilton as his attorney. The trial was held in December 1784 before John S. Hobart of the New York State Supreme Court of Judicature. In the special verdict transcribed by Hamilton below, the jury upheld both Leonard’s title to the property and the 1780 judgment of forfeiture. The determination of what effect the 1780 judgment had on Leonard’s purchase of property in May 1781 was postponed. In January 1786, judgment was given for Leonard for approximately thirty-one pounds damages and costs, plus retention of the property. Thus the court set the important precedent that property acquired by a Loyalist after a judgment of forfeiture was not subject to confiscation.[4]

The theme of loyalists and property also played a role in another 1784 Hamilton case, Rutgers v. Waddington. Elizabeth Rutgers owned a brewery that she was forced to abandon during the British occupation of New York City. Citing the Trespass Act of 1783, Rutgers sought £8,000 in rent from Joshua Waddington, the agent of the two merchants who occupied the property under British authority. Representing the defendants, Hamilton argued before the Mayor’s Court of New York City that the Trespass Act was inconsistent with the Tory property provisions of the Treaty of Paris, the 1783 pact which ended the war. Hamilton also asserted that the Law of Nations and the New York State Constitution’s incorporation of the English common law trumped the Trespass Act as the governing authority in the case. Thus the defendants’ payments to the lawful British authorities absolved them of any obligation to Rutgers.

Mayor James Duane delivered the court’s decision in August 1784, finding the defendants liable for rent during the period when they occupied the brewery under the authority of the British commissary general (September 1778 to April 1780) but not during the time when they had paid rent to authorities under the British military command (May 1780 to March 1783). The decision also recognized the Law of Nations as part of the common law that was incorporated under the 1777 New York State Constitution. Thus Rutgers v. Waddington was the first case to establish the principle that state legislation in conflict with provisions of a United States treaty was void. It also set a state precedent for judicial review, the doctrine later established on the federal level by the United States Supreme Court in the Marbury v. Madison case of 1803. Hamilton would use his arguments regarding judicial review from the Rutgers case as a basis for essays 22 and 78 in The Federalist.[5]

Provenance

Descended in the Hamilton family until acquired by us at Sotheby’s, Alexander Hamilton: An Important Family Archive of Letters and Manuscripts, January 18, 2017, lot 1026.

Condition

Some browning and dampstaining at crease folds, folded into quarters, exposed quarter with docket browned.

who being elected tried and sworn to declare the truth of the issue within contained [long before the time when the Trespass and ejectment within mentioned is supposed to have been done], upon their oath say, that Isaac Van Hook[9]late of the city of New York Tanner deceased, was in his life time seized in his demesne as of fee of and of the premises with in the said declaration messuage[10]with within mentioned with the appurtenances, among other things, in his demesne as of fee[11]; and being so seized before the time in which of that is to say on the 9th. day of June in the year of our lord 1774 made his testament and last will in writing subscribed by three witnesses in his presence and by the same amongst other things, devised[12]at and bequeathed all his messuages [houses] lands tenements tenements, hereditaments[13]and real and personal estate whatsoever and wheresoever unto Robert Crannel[14]of the city of New York Mariner and Johanna his wife daughter of the said Isaac V Hook and unto Eleanor Van Dycke[15]another daughter of the said Isaac; to have and to hold the same unto them their heirs Executors Administrators and assigns for ever[16]: to the intent and upon this special trust and confidence that they or the survivors or survivor of them or the heirs Executors or Administrators of such survivors should as soon as conveniently might be after the decease of the said Isaac fully grant dispose

<2> of and convey the said messuages houses lands tenements hereditaments and real and personal estate, so as aforesaid divised and bequeathed unto them unto any person or persons whomsoever [and to] his her or their heirs Executors Administrators and Assignsrespectively for ever, for the best price or prices that could be had or gotten for the same; and should pay distribute divide and apply the monies arising from such sale or sales in [the] manner following, that is to say, that they the said trustees should first of all pay all the just debts and funeral charges of the said Isaac; and then should pay one fourth part in the said will particularly directed and specified [and in and by the said testament and last will did nominate constitute and appointthe said [illegible word] executors [illegible word]] as by the same said [illegible word crossed out] [given in evidence to the same jurors] will more fully appears: And the said Issac V Hook of the messuage aforesaid with the appurtenances in the declaration aforesaid with[in] mentioned, amongst other things, in his demesne as of fee, in form aforesaid being seized, afterwards and before the time in which [symbol] that is to say on the 20th. Day of June in the same year 1774 died seized of the messuage aforesaid with the appurtenances, amongst other things in form aforesaid: after whose death the said trustees to wit (insert the trustees) into the messuage aforesaid with the appurtenances did enter , and were thereof among other things seized in their demesne as of fee, according to the form and effect of the testament and last will aforesaid; and the said trustees Robert Crannel [symbol] to wit (inserting the names)so being thereof seized, before the time in which [symbol] that is to say, the thirty first day of May in the year of our lord 1774 by a certain indenture made [and executed in due form of law] between the said Robert Crannel [symbol] of the one part and James Leonard [bearing date the same day and year] within mentioned of the other part; one part whereof sealed with seals of the said Robt.[symbol] to the jurors aforesaid was shown in evidence, for and in consideration

<3> of a certain sum of money to them in hand paid by the said James Leonard, at or before the ensealing and delivery of the said presents, did grant bargain sell alien release and confirm unto the said James Leonard the messuage aforesaid with the appurtenances *[written vertically:]* (in his actual possession there being by virtue of a bargain sale and lease for one year to him thereof made by the said Robert Crannel [symbol] the day before the [day of the] date of the said Indenture of release and by force of the statute made for transferring uses into possession), amongst other things to have and to hold to him and to his heirs and assigns for ever; And by by virtue whereof [and by force of the sayd statute for transferring uses into possession] the said James Leonard entered into of the said messuage with the appurtenances and was thereof seized, thereof his demesne as of fee [as the law requireth]. And further the jurors aforesaid upon their oath aforesaid say on the[symbol] day the indictment was preferred [illegible word crossed out] that the said James Leonard was according to the form of the act entitled “An act for the forfeiture and sale of the estates of persons who have adhered to the enemies of this state and for declaring the sovereignty of the people of this state in respect to all lands property within the same passed the 22d. day of October 1779” was on the

indicted of the offense of adhering to the enemies of this state; and that he the said James Leonard having according to the form of the act of the legislature aforesaid been notified to appear and traverse the said indictment, and not having appeared and traversed within the time and in the manner, in and by the said act limited and required, it was therefore considered that the said James Leonard should forfeit all and singular the estate both real and personal whether in possession reversion or remainder held or claimed by him within this State to the people of this State; which said judgment was entered in the Supreme Court of Judicature of this State Court of the people of the said State here in the term of October in the year of our lord 1780; and was signed by the Honorable Robert Yates[17]one of the justices of the said Court [here] on the 9th day of November in the year of our lord 1782 as by the record of the said judgment, in and among the records of the said court here remaining and being doth more fully appear

<4> And the jurors aforesaid upon their oath aforesaid further say that before the time when [symbol] that is to say on the [blank space] in the year of our lord 178 [blank space] Isaac Stoutenburgh[18]and Philip V. Cortlandt[19]Esquires Commissioners [blank space] for the Southern District of this State[20], claiming the said messuage with the appurtenances as the property of the people of this state, forfeited to the said People by force of the judgment aforesaid against the said James Leonard entered into the said messuage with the appurtenances by color of the judgment aforesaid, in behalf of the said people and in virtue of their office aforesaid, entered into the said messuage with the appurtenances, in and upon the possession of the said James Leonard; and then and there by indenture bearing date the same day and year, made between the said IS & P.VC commissioners as aforesaid of the one part and the said J Anthony Post of the other part, did grant bargain sell alien release enfeoff[21]and confirm unto the said Anthony Post the said messuage with the appurtenance; to have and to hold the said messuage with the appurtenances to him the said Anth P. & to his heirs and assigns forever; and that the said James Leonard afterwards that is to say on the within written

into the said messuage with the appurtenances in and upon the possession of the said Anthony Post did reenter and then and there demised granted and to farm let to the said James Jackson the said messuage with the appurtenances to have to him his Executors and Assigns from the within written

unto the full end and term of the within written

<5> years; and that the said Anthony Post afterwards that is to say the within written

unto the messuage aforesaid with the appurtenances upon the possession of the said James Jackson thereof did reenter and the said James from the possession of the messuage aforesaid did expel and remove; but whether upon the whole matter aforesaid

<6> [File Note, also in Hamilton’s hand:]

James Jackson / ex dem. Js Leonard / v Anthony Post / Special Verdict

[Written later, in pencil, by another hand]: 1774 [perhaps meaning 1784, the year of the verdict]

[5] For more on the Rutgers case, see Peter Charles Hoffer, Rutgers v. Waddington: Alexander Hamilton, the End of the War for Independence, and the Origins of Judicial Review (Lawrence, KS: Kansas University Press, 2016).

[6] Ex demissione, or “upon the demise,” with the word “demise” here meaning “lease” or “transfer.” This phrase was commonly used in cases involving the action of ejectment, or civil action to recover the possession of or title to land. For technical reasons, under ejectment (a term now largely obsolete) a claimant granted (or claimed to have granted) a lease to fictitious person who became the nominal plaintiff. The actual claimant was then known as the “lessor of the plaintiff.” In this case, “James Jackson” is the fictitious/nominal plaintiff, while James Leonard is the lessor.

[7] A James Leonard from Ulster County, New York signed a July 1775 document that pledged support for the Continental Association, a system created by the First Continental Congress in 1774 to enforce a trade boycott with Great Britain. However, it is not clear if this is the same man as the James Leonard in the Leonard v. Post case. See “Recantation of James Leonard,” in Southern Illinois University, University Libraries, Digital Collections and Collaborative Projects, American Archives: Documents of the American Revolutionary Period, 1774-1776; available online at http://amarch.lib.niu.edu/islandora/object/niu-amarch%3A102816.

[8] Anthony Post was a carpenter who in later years would serve as president of the General Society of Mechanics and Tradesmen of the City of New York and as a Federalist assemblyman in the New York State Legislature. See Alfred Young, “The Mechanics and the Jeffersonians: New York, 1789-1801,” in Daniel J. Leab, ed., The Labor History Reader (Urbana and Chicago: University of Illinois Press, 1985), 69n-70n.

[9] Isaac Van Hoeck/Hook (1695-1774), also listed in records as a cordwainer (or shoemaker), had nine children with his wife Aefge Van Schaick (1704-1744).

[10] A messuage is a dwelling house with outbuildings and land assigned to its use.

[11] Under the term “seised in demesne as of fee,” the word “seised” is used to express the owner’s possession of a property, the phrase “in de mesne” means that he is seised as owner of the land itself, and “as of fee” that he is seised of an estate of inheritance.

[16] “To have and to hold the same unto them their heirs Executors Administrators and assigns for ever” is a clause employed to bind a person or persons who succeed to the rights and duties granted under a contract to the provisions of said contract.

[17] Robert Yates (1738-1801) was appointed to the New York State Supreme Court in 1777, and would serve as its chief justice from 1790 to 1798. A New York delegate (along with Hamilton and John Lansing Jr.) to the Constitutional Convention of 1787, he emerged after the convention as one of the leaders of the Antifederalists. He twice ran unsuccessfully for governor of New York.

[18] Isaac Stoutenburgh III (1739-1799) was an American Revolutionary War veteran and member of the New York Provincial Congress and the New York State Senate. In February 1780 he was appointed as a commissioner of forfeitures for the Southern District of New York.

[19] Philip Van Cortlandt (1749-1831), a member of a prominent patroon family, was an American Revolutionary War veteran and surveyor who also served as a New York state legislator and U.S. congressman.

[20] The Commission of Forfeiture, created by the 1779 Forfeiture Act, administered the confiscation and sale of loyalist property in New York State. Three commissioners were appointed from each of the state’s four districts. Stoutenburgh and Van Cortlandt were two of the commissioners from the southern district, which consisted of New York, Kings, Queens, Richmond, Suffolk, and Westchester counties.

[21] To put a person in legal possession of a freehold interest; to transfer a fief to.